Cruel, or just unusual?

NEXT to Afghanistan, no country imposes tougher Islamic laws than Saudi Arabia. The resort to beheading, hand-chopping and whipping fuels tabloid gore and human-rights outrage. Yet, cruel as the system often is, the deeper trouble may lie less with the letter of the law than with the obtuse, opaque and clumsy ways it is applied. Inefficiency, not excess, is what is now prompting belated efforts at reform.

Most Saudis take pride in their legal system, or at least in the fact that it can claim to be purely Islamic. The kingdom is the only state to hold the Koran as its constitution, and the only one where judges are trained solely in the sharia or Islamic jurisprudence. These traditions, along with the 250-year-old alliance between the ruling al-Saud family and the arch-fundamentalist Wahabi sect, form the core of the Saudi sense of identity.

This is why Saudis tend to bristle at western criticism of their laws. Alarm over the recent sentencing of four Britons to be flogged for dealing in alcohol moved the head of the kingdom's Supreme Court, Sheikh Saleh al-Luhaidan, to accuse critics of trying to “undermine Islam”.

Ordinary Saudis were appalled this winter, says a Riyadh businessman, not by seeing three westerners confess on television to a series of local bomb atrocities, but by the fact that they were not executed immediately, “as any Saudi would have been”. When Crown Prince Abdullah, the kingdom's de facto ruler, recently cancelled a trip to Canada after charges there that one of the alleged bombers, a Canadian, had been tortured, his popularity soared at home.

A senior official explains that foreigners suffer under a basic misconception. “People confuse our human-rights record with government policy, but our laws were not instituted by the government,” he says. “They were already here.”

Yet it is not only infidels who complain. Even the ultra-timid Saudi press voices protest at muddled, shabby and hasty court procedure, and at the small number of judges who must handle an increasingly varied load—fewer than 700 for a country with 23m inhabitants.

In private, Saudis familiar with the courts offer sharper critiques. The main complaint is that judges, who have wide discretion in interpreting the sharia, are ignorant, and often contemptuous, of the modern world, issuing restrictive fatwas to preserve Saudi “purity”. Recent examples include edicts banning the children's game Pokémon, telephones that play recorded music on hold, and the habit of sending flowers to hospital patients.

Such reactionary preoccupations may be understandable, considering that, by one estimate, 80% of the kingdom's judges come from the Qasim, a region in the deep centre of the country that is a wellhead of Wahabi extremism. Senior judges will admit only like-minded graduates of select religious institutes into what is in effect a priestly fraternity. One lawyer reckons that even a Qasimi jurist may be barred entry if he happens to have trained at Mecca, a place considered tainted by foreign influence. A judge who strays from the rigid conservatism of his elders risks being fired.

The narrow doctrinal outlook of Saudi judges explains the survival of legal tenets that most Muslims consider outmoded or misguided. Virtually nowhere else are women banned from driving cars, or obliged to secure a male guardian's permission to travel locally or be admitted to hospital. Nowhere else are the qisas, or retaliatory punishments allowed under Islam, applied with such punctilio: last August, an Egyptian worker's eye was surgically removed at the insistence of a man who lost the use of his own eye after the Egyptian had thrown acid in his face.

Alternative justice

Much of the Saudi public may accept such rulings as proper. Yet the government itself has long tacitly admitted the shortcomings of Saudi justice by the simple expedient of creating special tribunals to bypass sharia courts. Over 20 of these now adjudicate most commercial matters, from trademark infringements to labour disputes.

Judges have recently blocked insurance laws and progressive income tax

Without them the Saudi economy would probably come to a halt. Sharia jurists, for example, insist that interest is tantamount to usury, one of Islam's seven major sins. Since the courts will not enforce the payment of interest, the Saudi Monetary Authority steps in to cover defaults on interest-bearing loans. But circumventing religious strictures is not always so easy. Judges have recently blocked insurance laws (they say actuary science is akin to gambling) and progressive income tax (they say Islam enshrines the payment of one-fortieth of personal income to charity, and that other taxes are illegal).

Because of such obstruction, moves to reform the legal system are gaining momentum. A Code of Criminal Procedure, first introduced a decade ago but withdrawn under pressure from senior judges, is to be implemented next month. The new rules will help to ensure proper legal procedures and strengthen the rights of defendants, including the right to be represented by a lawyer. Legal practitioners worry that judges, many of whom take pride in ignoring “worldly” laws, may simply decline to apply the new code. Still, it is a good step.

Similarly, there is talk of establishing special courts to cover traffic offences. This, too, is an important step. Saudi roads are dangerous, not merely because of bad driving but because of the sharia courts' harsh, arbitrary assignment of liability.

More fundamental reforms will take time. The government, with its legitimacy tightly bound to its upholding of the faith, is wary. Yet there is something it could tackle urgently. Even Saudis who shrug off their judges as crusty and conservative charge the police, who apply the judges' rulings, with bumbling brutality. There is nothing in Islam to excuse this.